A comparative advertising communication becomes disparaging when it does not limit itself to comparing products but deliberately and consciously omits useful and truthful information. What counts is the language with which the message is expressed, which must not go beyond the rules of “continence”. This was established by the court of Milan which recognized, with two different decisions (the ordinances of January 4, 2021 and December 3, 2020) the existence of the competitive offense in relation to the disparaging advertising communications against a competitor and the violation of the ‘ article 2598 n. 2 of the Civil Code. The rulings of the ordinary Courts on the subject of denigrating advertising in which the judges in addition to deciding on the individual case enunciate arguments of principle are very rare. There are also no decisions in the cassation. These two recent rulings of the Court of Milan according to which the offense is not determined by the mere comparison between the products but by the methods of comparison are therefore of particular interest.
Jurisprudence
According to article 2598 n. 2 of the Civil Code, disseminating “news and opinions on the products and activities of a competitor, capable of causing discredit”, is an act of unfair competition. Over the years, the few rulings of the ordinary judiciary have had a wavering approach. On the one hand, they were based on the belief that advertising communication – by its inherent nature – could hardly be impartial and objective, even if truthful. Each hypothesis of comparison, especially if explicit, therefore automatically determines the competitive offense relating to commercial communications that denigrate a competitor regardless of its truthfulness (Court of Bologna, 31 July 1976). On the other hand, comparative advertising was deemed lawful as long as it was truthful and conveyed in a way that was not devious or tendentious and such as to lead, in fact, into denigration: by representing true facts, the resulting discredit would be substantially deserved. An approach similar to the two recent decisions of the Court of Milan which did not consider comparative advertising per se disparaging but sanctioned the way in which the comparison took place.
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The omission of information
With the order of 3 December 2020, the Court ruled on a commercial communication concerning the promotion of an app for the payment and management of the parking of “contactless” vehicles. The message, accompanied by photographic documentation showing images of parking meters produced and sold by a competitor, emphasized the risk that parking meters could favor the spread of pathogenic microorganisms, unlike the use of the app being promoted. The Milanese judges, however, highlighted that interaction with a smartphone is also required for the functioning of the app, a possible source, too, of the spread of pathogenic microorganisms. From this point of view, the message would have failed to carry out a “dutiful comparison between completely homogeneous risks” with a deliberate and conscious omission of information useful for the uniformity of the comparison which, in fact, undermined the veracity of what was declared. This, combined with the fact that the images accompanying the message reproduced only the parking meters of the applicant competitor, led to a clear disparaging intent.
The modes of expression
In the order of complaint of last January 4, the Milan judges took a position on a message conveyed by a well-known airline against OTAs (Online Travel Agents), guilty, according to the advertiser, of:
operate illegally as lacking the necessary authorizations;